S v Kgaphola (114/03) [2003] ZANWHC 33 (10 June 2003)

CA NO.:114/03

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE

STATE

VS

KHUNOU PIET

KGAPHOLA

REVIEW JUDGMENT

HENDRICKS AJ:

This is a matter that came before me as a review, from the Regional Court, in terms of Section 116 (3) of the Criminal Procedure Act. The accused was charged in the District Court with indecent assault. Initially the charge sheet reads thus:-

“on or about the 14th September 2002 and at or near Mabopane in the District of Odi, the accused did unlawfully and intentionally commit an assault of an indecent nature upon Suprise Dimakatso Mmangwato by touching her throughout the body and ordering her to touch his erect penis after exposing it to her”.

The accused, who was initially unrepresented, pleaded not guilty to this charge and evidence was led. At a later stage during the trial, the accused became legally represented. Acting on the advise of his legal representative, the accused altered his plea of not guilty to a plea of guilty. The Magistrate, after convicting the accused, referred this matter to the Regional Court for sentence. The Regional Court Magistrate directed certain queries to the Magistrate of the District Court and also requested reasons for conviction. The reasons were supplied to the Regional Court Magistrate who, despite the reasons been provided, still doubted whether the proceedings were in accordance with justice. The Regional Court Magistrate supplied his reasons why he thinks that the proceedings in the Magistrate Court are not in accordance with justice. On one instance when this matter appeared in the Regional Court, the accused’s legal representative, who happened to be somebody different from the person who initially represented the accused, requested that the matter be referred back to the District Court “because of the irregularities to enable the defence to apply for the review of the proceedings”. I do not know why the matter had to follow this route seeing that the accused was legally represented during the trial and he could have exercised his right to appeal or he could have made a review application after completion of the trial. (See S v Mogoregi 1978 (3) SA 13 (O). Be that as it may, I am now seized with this matter on review and I will deal, for the sake of expediting the process and not to delay the matter any further, with the issues raised by the Regional Court Magistrate.

The accused, who was initially unrepresented, pleaded not guilty to this charge and evidence was led. At a later stage during the trial, the accused became legally represented. Acting on the advise of his legal representative, the accused altered his plea of not guilty to a plea of guilty.

The Magistrate, after convicting the accused, referred this matter to the Regional Court for sentence. The Regional Court Magistrate directed certain queries to the Magistrate of the District Court and also requested reasons for conviction. The reasons were supplied to the Regional Court Magistrate who, despite the reasons been provided, still doubted whether the proceedings were in accordance with justice. The Regional Court Magistrate supplied his reasons why he thinks that the proceedings in the Magistrate Court are not in accordance with justice.

On one instance when this matter appeared in the Regional Court, the accused’s legal representative, who happened to be somebody different from the person who initially represented the accused, requested that the matter be referred back to the District Court “because of the irregularities to enable the defence to apply for the review of the proceedings”. I do not know why the matter had to follow this route seeing that the accused was legally represented during the trial and he could have exercised his right to appeal or he could have made a review application after completion of the trial. (See S v Mogoregi 1978 (3) SA 13 (O).

Be that as it may, I am now seized with this matter on review and I will deal, for the sake of expediting the process and not to delay the matter any further, with the issues raised by the Regional Court Magistrate.

Firstly, the Regional Court Magistrate raised the question whether it was procedurally correct for the District Court Magistrate to request the State and the Defence to address the Court before judgment where the accused had pleaded guilty and a Section 112 (2) statement was handed in.

The District Court Magistrate in response states that she was looking at Section 175 of the Criminal Procedure Act 51 of 1977 which states that the prosecution and the defence may address court at the conclusion of evidence. According to her, some evidence was initially led by the State initially and the accused afterwards changed his plea to guilty. She thought that by not affording the State and the Defence an opportunity to address the court, would result in a gross irregularity and the accused would not have had a fair trial as contemplated in Section 35 (3) of the Constitution, Act 108 of 1996.

The Regional Court Magistrate in his “Reasons”, in response to the reasons by the District Court Magistrate, expressed the view that the procedure followed by the District Court Magistrate was wrong. He contended that once the court is satisfied as to the guilt of the accused after receiving the Section 112 (2) Statement, it should “ ‘mero motu’ immediately return a verdict of guilty, without first affording the State and the Defence the opportunity of addressing it”.

Whilst it may well be the practice in terms of section 112 (2) that courts usually return verdict of guilty upon been satisfied after such a section 112 (2) statement is received, I can find nothing wrong with the procedure followed by the District Court Magistrate. The question arises as to whether the accused suffered any prejudice resulting in a failure of justice if he is afforded an opportunity to address court before a verdict of guilty is entered, especially if his legally represented? This question must be answered in the negative.

I am of the view that the District Court Magistrate did more than what was required of her. The accused suffered no prejudice whatsoever and in fact was given an opportunity to address court when usually such an opportunity is not often afforded to an accused person.

See:- S v Mabote en Andere 1983 (1) SA 745 (O) S v Kwinda 1993 (2) SACR 408 (V).

Secondly, the Regional Court Magistrate queried the fact that the matter was transferred to the Regional Court by the District Court Magistrate, without affording the parties the opportunity to address the court on mitigation and / or aggravation of sentence. This, he submit, is indicative of the fact that the District Court Magistrate made up her mind regarding sentence before she could hear the parties. He raised the question whether this action does not constitute an irregularity.

In reply to this question, the District Court Magistrate stated that she applied Section 116 (1) (a) of the Criminal Procedure Act, 51 of 1977.

Section 116 (1) (a) of the Criminal Procedure Act reads thus:-

“If a Magistrate court, after conviction following, is of the opinion -

that the offence in respect of which the accused has been convicted is of such a nature or magnitude that it merits punishment in excess of the jurisdicition of a magistrate court; ..

the court shall stop the proceedings and commit the accused for sentence by a regional court having jurisdiction”.

It is clear from the wording of this section that in the event a District Court Magistrate is of the opinion that the nature or magnitude of the crime warrants or merits punishment in excess of its jurisdiction, than that court shall stop the proceedings and commit the accused for sentence by a Regional Court having jurisdiction. It is clear from the “Reasons” of the District Court Magistrate, that because of the seriousness (nature or magnitude) of the offence, she was of the opinion that it merits punishment in excess of that court’s jurisdiction. The question is whether it was correct for her to commit the accused for sentence in the Regional Court before hearing any address or evidence on sentence. There is nothing in the wording of this section that makes it peremptory for a District Court Magistrate to first hear evidence and/or to listen to an address on sentence before the matter can be transferred to the Regional Court for sentence.

Although it can be argued that in order for a District Court Magistrate to decide whether the matter should be transferred to the Regional Court for sentence, it is appropriate for such a Magistrate to first hear argument and/or evidence on sentence, there is nothing that prohibits a District Court Magistrate to send a matter to the Regional Court for sentence in accordance with Section 116 (1) (a), without hearing evidence / argument on sentence?

In terms of Section 116 (1) (b), if the previous conviction of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a District Court, than that court shall stop the proceedings and commit the accused for sentence in the Regional Court.

This section creates a process whereby the previous convictions need to be proved before the committal of an accused person for sentence by a Regional Court having jurisdiction. It stands to reason that, if the stage is not reached where the previous convictions are proved before the District Court Magistrate, than in such an instance the matter cannot be transferred to the Regional Court for sentence.

The only manner in which a District Court Magistrate can determine whether the previous convictions of an accused warrants a referral of the matter to the Regional Court for the imposition of a suitable sentence, is when evidence is led to proof the previous convictions.

In other words, in terms of Section 116 (1) (b) it is necessary for the District Court Magistrate to first hear evidence and/or argument on sentence and then to decide whether to send the matter to the Regional Court or not. This is not the case with Section 116 (1) (a). If the Magistrate is satisfied that the “nature or magnitude” of the offence is such that it merits punishment exceeding its jurisdiction, than that court SHALL stop the proceedings and commit the accused for sentence by the Regional Court.

Section 116 (3) (a) provides that:-

“The regional court shall, after considering the record of the proceedings in the magistrate’s court, sentence the accused, and the judgment of the magistrate’s court shall stand for this purpose and be sufficient for the regional court to pass any competent sentence:.......

It is clear from the wording of this sub-section (3) (a) that the Regional Court is enjoined with the task to sentence an accused person referred to it in terms of Section 116 (1) (a) or (b).

The use of the word “shall” makes it peremptory for the Regional Court to consider what is contained in the record of proceedings in the Regional Court and than to sentence an accused.

It is clear from the wording of this sub-section that the legislature did intend to create a procedure whereby the evidence of a trial which started in the District Court be accepted by the Regional Court.

I am of the opinion that it was the intention of the legislature that evidence on the merits should be heard in the District Court and evidence on the sentence, should be heard in the Regional Court in a case where Section 116 (1) (a) is applicable. What the legislature intended was to cater for a situation where the District Court after it has heard evidence and convicted the accused forms the opinion that the nature of the crime of which the accused is convicted of and/or proof of his previous convictions merits the imposing of a sentence that exceeds its jurisdiction, in such an instance, the District Court shall commit an accused for sentence by a Regional Court having jurisdiction. It is therefor not imparative for a District Court Magistrate to first hear evidence to establish whether the sentence to be imposed exceeds its jurisdiction. If the crime is of a serious nature, the District Court Magistrate shall after convicting an accused person commit him to the Regional Court for sentence.

Lastly, the Regional Court Magistrate questioned (a) whether the accused was convicted on the original charge sheet or the amended charge sheet or on the strength of the contents of his Section 112 (2) statement, and (b) whether the charge sheet was amended or the charge sheet was substituted.

These questions arises because the charge originally, referred to ‘14 September 2002' and ‘Mabopane’ which was later changed to “1998 - 2002" and “Erasmus” being the date and place where the offence was committed. The District Court Magistrate in her ‘Reasons’ states that the charge sheet was amended by deleting “14 September” and substitute it with “1998" and also by deleting the word “Mabopane” and substitute it with the word “Erasmus”. This amendment was done at the stage when the accused was legally represented. The accused’s legal representative did not object to this amendment. In fact, the legal representative of the accused altered the plea explanation tendered in terms of amended charge sheet. In the charge sheet it is alleged that the indecent nature of the assault lies therein that the accused “touching her throughout the body and ordering her to touch his erect penis after exposing it to her”. In this plea explanation, the following is stated: “I was arrested for indecent assault and on the person of Suprice Mangwato, in that I touched her private parts and her breasts without her concent”. The District Court Magistrate entered a verdict of guilty to indecent assault. This was done after the plea explanation of the accused was accepted. It must therefor be inferred that the state, in accepting the plea on the explanation tendered, accepted that the indecent nature of the assault lied in the fact that the accused touched the private parts and the breast of the complainant.

These questions arises because the charge originally, referred to ‘14 September 2002' and ‘Mabopane’ which was later changed to “1998 - 2002" and “Erasmus” being the date and place where the offence was committed.

The District Court Magistrate in her ‘Reasons’ states that the charge sheet was amended by deleting “14 September” and substitute it with “1998" and also by deleting the word “Mabopane” and substitute it with the word “Erasmus”.

This amendment was done at the stage when the accused was legally represented. The accused’s legal representative did not object to this amendment. In fact, the legal representative of the accused altered the plea explanation tendered in terms of amended charge sheet.

In the charge sheet it is alleged that the indecent nature of the assault lies therein that the accused “touching her throughout the body and ordering her to touch his erect penis after exposing it to her”. In this plea explanation, the following is stated: “I was arrested for indecent assault and on the person of Suprice Mangwato, in that I touched her private parts and her breasts without her concent”.

The District Court Magistrate entered a verdict of guilty to indecent assault. This was done after the plea explanation of the accused was accepted. It must therefor be inferred that the state, in accepting the plea on the explanation tendered, accepted that the indecent nature of the assault lied in the fact that the accused touched the private parts and the breast of the complainant.

The same applies to the District Court Magistrate who convicted the accused after the plea of guilty was tendered.

The difference between the contents of the plea explanation and the contents of the charge sheet lies therein that; firstly the charge sheet refers to “touching her throughout the body .....” whereas the plea explanation makes mention of the “private parts and the breast” and secondly, the charge sheet makes mention of “ordering her to touch his erect penis after exposing it to her”; and the plea explanation does not contain this allegation.

The question arises as to whether the conviction of indecent assault is correct and can be sustained. I am of the view that touching the complainant’s “private parts and breast” are in line with “touching her throughout the body” and is sufficient to sustain the conviction of indecent assault. I am of the opinion that the plea explanation can be reconciled with what is contained in the charge sheet. It is only that the plea explanation contains more detail as to where on her body was the complainant touched. The mere fact that the plea explanation is silent with regard to the allegation contained in the charge sheet about the penis of the accused does not mean that the elements of the offence of indecent assault were not correctly admitted by the accused. The admission of the unlawfully and intentionally touching of complainant’s private part and breast is sufficient to sustain a conviction of indecent assault.

.

The question now arises as to which court the matter should be referred back to, the Magistrate Court or the Regional Court?

In S v Mmolawa 1979 (2) SA 644 (B) on page 646 - H to page 647 - F Hiemstra CJ stated the following:-

“ Indien net een van die aanklagte bly staan en vonnis not opgelê sal moet word, onstaan die vraag na watter hof die saak terugverwys moet word vir oplegging van vonnis - die magistraatshof of die streekhof. Art 116 (3) (a) van Wet 51 van 1977 bepaal dat die Hersieningsregter dieselfde bevoegdhede het asof die oorkonde ingevolge art 303 aan hom voorgelê is. In omstandighede waar die magistraat ontoereikende strafbevoegdheid besit, sou dit sinloos wees om die saak na hom terug te verwys want hy sal verplig voel om die weer na die streekhof te stuur ingevolge art 116 (1) (a) omdat hy meen dat die misdryf  straf regverdig wat sy strafbevoegdheid oorskry. Ek meen ook dat die Strafproseswet nie vereis dat die saak na die magistraat teruggaan nie. Die saak word behandel asof die oorkonde kragtens art 303 opgestuur is. Art 303 verwys na die klerk van die

“betrokke” hof, wat die oorkonde stuur. Die betrokke hof hier is die streekhof, en hoewel art 304, wat die magte van die Hersieningshof uiteensit, deurgaans melding maak van die “landros”, myns insiens by noodwendige implikasie bevind word dat die sak moet teruggaan na die hof wat dit vir hersiening opgestuur het, en dit is die streekhof. As dit nie gedoen word nie sal die saak, indien hierdie Hof saamstem met die magistraat dat hy ontoereikende strafdevoegdheid besit, die omweg moted volg deur die magistraatshof terug na die streekhof toe. Dit is teen die struktuur en bedoeling van die Strafproses wet, was deurgaans kennelik streef na uitskakeling van administratiewe omslagtigheid....” And further on the same page “  Saak wat eenmaal na  streekhof verwys is, kan nie na die magistraatshof terugverwys word vir geregtelike afhandeling nie. Art 116 (3) (a) bepaal: “ 116 (3) (a): Die steekhof moet, na oorweging van die oorkonde van die verrigtinge in die landdroshof, die beskuldigde vonnis ...”

“ Indien net een van die aanklagte bly staan en vonnis not opgelê sal moet word, onstaan die vraag na watter hof die saak terugverwys moet word vir oplegging van vonnis - die magistraatshof of die streekhof. Art 116 (3) (a) van Wet 51 van 1977 bepaal dat die Hersieningsregter dieselfde bevoegdhede het asof die oorkonde ingevolge art 303 aan hom voorgelê is. In omstandighede waar die magistraat ontoereikende strafbevoegdheid besit, sou dit sinloos wees om die saak na hom terug te verwys want hy sal verplig voel om die weer na die streekhof te stuur ingevolge art 116 (1) (a) omdat hy meen dat die misdryf  straf regverdig wat sy strafbevoegdheid oorskry. Ek meen ook dat die Strafproseswet nie vereis dat die saak na die magistraat teruggaan nie. Die saak word behandel asof die oorkonde kragtens art 303 opgestuur is. Art 303 verwys na die klerk van die

“betrokke” hof, wat die oorkonde stuur. Die betrokke hof hier is die streekhof, en hoewel art 304, wat die magte van die Hersieningshof uiteensit, deurgaans melding maak van die “landros”, myns insiens by noodwendige implikasie bevind word dat die sak moet teruggaan na die hof wat dit vir hersiening opgestuur het, en dit is die streekhof. As dit nie gedoen word nie sal die saak, indien hierdie Hof saamstem met die magistraat dat hy ontoereikende strafdevoegdheid besit, die omweg moted volg deur die magistraatshof terug na die streekhof toe. Dit is teen die struktuur en bedoeling van die Strafproses wet, was deurgaans kennelik streef na uitskakeling van administratiewe omslagtigheid....”

And further on the same page

“  Saak wat eenmaal na  streekhof verwys is, kan nie na die magistraatshof terugverwys word vir geregtelike afhandeling nie. Art 116 (3) (a) bepaal:

“ 116 (3) (a): Die steekhof moet, na oorweging van die oorkonde van die verrigtinge in die landdroshof, die beskuldigde vonnis ...”

Hierdie gebiedende voorskrif word nie deur die voorbehoudsbpaling by para (a) aangetas nie. Ek is dus van oordeel dat die saak na die streekhof moet teruggaan vir oplegging van vonnis ten opsigte van die skuldigbevinding soos gewysig”.

I am in full agreement with what is stated by the Learned Chief Justice Hiemstra (as he then was).

CONCLUSION

In view of the abovementioned, I make the following order:-

The conviction of indecent assault is confirmed

The matter is referred back to the regional court for the impositioning of a suitable sentence, after evidence and / or argument is heard in mitigation or aggravation of sentence.

R.D. HENDRICKS

ACTING JUDGE OF THE

HIGH COURT

DATED: 10 JULY 2003